General Terms of Sale

Last updated: 2021-03-25

These General Terms of Sale (the “General Terms”) applies to all products sold by Cellink AB or its’ affiliates (Cellink LLC, Cellink SAS, Cellink Ltd., Dispendix GmbH, cytena GmbH) (the “Products”), 559050-5052, Arvid Wallgrens Backe 20, 413 46 Göteborg, Sweden (“Cellink”). 

The General Terms shall constitute an appendix to a purchase agreement, supply agreement, order confirmation or other agreements of a similar nature, which together constitutes the Parties’ agreement (the “Agreement”). 

The purchaser of products from Cellink is hereinafter referred to as the “Buyer”, and “Party” means Cellink or the Buyer and “Parties” means Cellink and the Buyer together. 

In the event that the General Terms contradict the Buyer’s general terms and conditions of purchase, Cellink’s General Terms shall prevail. 

E-mail shall be considered sufficient wherever “written” is used in these General Terms.

1. Orders and Supply etc

The Buyer shall order the Products in writing from Cellink. No order is binding to Cellink until Cellink has confirmed an order. Cellink will state the price and estimated delivery time in such confirmation. Notwithstanding the provisions in the Buyer’s order, each contract of sale shall be subject to these General Terms.

The Buyer is aware and acknowledges that Cellink’s delivery capacity varies depending on, inter alia, the general market conditions. As soon as Cellink has reason to assume that a delay in the agreed delivery could occur, Cellink shall notify the Buyer thereof and shall in such case be entitled to reasonable prolongation of the delivery date of up to twenty (20) business days. Notwithstanding the foregoing, Cellink shall always endeavor to maintain a delivery capacity that enables Cellink to deliver the Products in accordance with accepted orders.

2. Payment

The Buyer shall purchase the Products at the prices set out in Cellink’s price list applicable at the time when Cellink has received each respective order. Cellink has the right to change the price list at any time. 

Unless otherwise agreed in writing, the Buyer shall pay for all Products no later than thirty (30) days from the date of Cellink’s invoice. When purchasing the Products marked with “advance payment” the Buyer shall pay agreed amount in advance, in accordance with Cellink’s invoice. 

The Buyer has no right to offset. The Buyer shall not have the right to withhold payments to Cellink or reduce the amount of payments owed to Cellink under this Agreement for fees, claims, damages, expenses or other amounts owed, or alleged to be owed, to Buyer from Cellink under this Agreement or any other agreement.

In the event that the Buyer at any time should fail to make payment in full on the due date Cellink shall be entitled to claim interest on the sum overdue until payment is made at the rate equivalent to the reference rate of interest (as determined by the Central Bank of Sweden) plus sixteen percentage points per annum. 

Title to the Products shall remain with Cellink until fully paid by the Buyer in accordance with this section.

3. General Conditions of Delivery

The Products shall be delivered from Cellink to the Buyer under the Incoterm CPT – Carriage Paid To (Incoterms 2020). The Incoterm may be changed if both parties agree in writing.

Shipments may incur customs fees depending on the destination country. The fee may vary depending on the order value, country limits and other factors based on the Product itself. The Buyer is solely responsible for these fees and shall pay all of these fees to the appropriate customs agency. Customs agencies often calculate duties/fees based on the declared retail price.

Any delivery from Buyer to Cellink, e.g. of Products returned for repair or calibration (whether under warranty terms or not), shall be delivered DAP – Delivered At Place (Incoterms 2020).

Cellink reserves the right to make partial deliveries. Unless otherwise agreed, invoices will be adjusted pro rata. For the purpose of these terms any partial delivery will be regarded as filling a specific order.

4. Acceptance

The Buyer shall immediately following each delivery of any Product inspect the Product in order to identify any external damage and to ensure that the delivery is in accordance with the order. Any defects or deficiencies which are detected in conjunction with delivery shall immediately be reported in writing to Cellink.

When a Product is unpacked, and in any event before the Product has been used by the Buyer, the Buyer shall perform a full inspection of the Product where such was not possible on receipt of the Product in question. The obligation to report any defects to Cellink as set out in section below shall apply in such context.

At the request of Cellink, the Buyer shall make defective goods available to Cellink for inspection and control. 

If the Buyer does not report defects or deficiencies in Products delivered within the time limits set out above, the Buyer shall have no right to make any claims against Cellink with regard to the default or defect.

5. Liability for Defects

Cellink shall remedy any defect in Products delivered, resulting from faulty design, specification, materials or workmanship attributable to Cellink in accordance with the provisions of this section 5.

Cellink is only liable for defects that appear under the intended and proper use of the Products, included printing using Cellink’s bioink only and non-reused Cellink consumables. Thus, the liability does not cover defects caused by faulty maintenance, handling or incorrect storage by the Buyer, alterations of the Products carried out without Cellink’s prior written consent, or normal wear and tear and deterioration.

In order to enable the Buyer to bioprint or dispense, the Buyer may insert a USB to upload a .STL-file or other file for dispensing or cell monitoring to the Products. Cellink shall not be liable for any damage or loss caused by the Products on any other software contained on the USB. Cellink shall neither be liable to remedy any defects to the Products caused by faulty or corrupt software provided by the Buyer.

Cellink’s liability is limited to defects which appear within 12 months from the date when the Products were delivered.

The Buyer shall notify Cellink in writing of a defect without undue delay after the defect has appeared, and in no case later than two (2) weeks after the expiry of the liability periods as set out above. The notice shall contain a description of how the defect manifests itself. If the Buyer fails to notify Cellink in writing within the above time limits, the Buyer forfeits its right to make any claim in respect of the defect. If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Buyer forfeits the right to make any claim based on damage which occurs, and which could have been avoided, if such notice had been given.

After receipt of a written notice, Cellink shall, at Cellink’s option, repair or replace the Product or make a reasonable reduction of the purchase price for the Products without undue delay. If Cellink fails to fulfil its obligations under this section within a reasonable time, the Buyer may by written notice require Cellink to do so within a final time. If Cellink fails to fulfill its obligations within that time limit, the Buyer may terminate the purchase of the defective Products in question by written notice.

If the Buyer gives such notice as referred to above, and no defect is found for which Cellink is liable, Cellink shall be entitled to compensation for the work and costs which it has incurred as a result of the notice.

All transports in connection with replacement shall be at the Buyer’s risk and at Cellink’s expense. The Buyer shall follow Cellink’s instructions regarding how such transport shall be carried out.

Cellink shall have no liability for defects save as stipulated above. This applies to any loss the defect may cause, such as loss of production, loss of profit and other consequential economic loss. The limitation of Cellink’s liability under this section shall, however, not apply where Cellink has been guilty of negligence.

6. Granted Rights

Cellink grants the Buyer a non-exclusive, non-transferable, non-sublicensable, perpetual right to use the Product Software in the Products within the Buyer’s own business. The Buyer shall not have any right to the Product Software apart from the right to use Product Software in line with these General Terms. Except for the Buyer’s right to make back-up copies if this is necessary for the intended use of the Product Software, and to decompile the Product Software to achieve interoperability with other programs, the Buyer is not allowed to modify, copy, disassemble, reassemble, distribute, publish, reverse engineer, build a derivate or duplicate the Product Software, its components, services or features. The Buyer is only allowed to use the Product Software for its own benefit and is not allowed to make the application available to third parties.

7. Trademarks and other intellectual property rights

All intellectual property rights and other rights, including without limitation patents, design rights, trademarks, copyright and know how, relating to the Products and any and all documentation related thereto shall be the exclusive property of Cellink.

Nothing in connection with purchase of Products or in the Agreement shall constitute or be construed as a transfer of ownership of any of Cellink’s intellectual property rights or other rights or to otherwise give the Buyer any proprietary rights to Cellink’s intellectual property rights.

The Buyer shall not remove or change any trademark, trade name, sign or other mark on any Product or its packing, or make any alterations in the construction or design of any Product.

8. Permitted use of the Products

The Buyer agrees to and warrants that the Buyer only will use the Products in:

  1. accordance with these General Terms and the user manual provided for the Products;
  2. a way that does not promote or encourage illegal activity;
  3. a way that is not harmful, abusive or offensive, does not infringe the rights of any third party or in any other way can harm Cellink; and
  4. compliance with all applicable laws, including local laws of the country or region in which the Buyer resides or in which the Product is used.

9. Product Liability

Cellink is not liable for any damage caused by the Product to any movable or immovable property or the consequences of such damage, which occurs after the Product is delivered to the Buyer.

The Buyer shall indemnify and hold Cellink harmless to the extent that Cellink incurs liability towards any third party in respect of loss or damage for which Cellink is not liable in relation to the Buyer. For the avoidance of doubt, the Buyer shall have a liability to recourse all costs inflicted on Cellink, due to any such claims.

Subject to the limitations stated above, Cellink is liable for claims made by a consumer, in accordance with mandatory law for personal injury or damage to property caused by the Product.

If a claim for damage as described in this section is lodged by a third party against one of the Parties, the latter Party shall forthwith inform the other Party thereof in writing.

A precondition for Cellink’s liability set forth above is that Cellink has been notified in writing of such claim in accordance with above and given authority to settle the claim or control the defense of any suit and proceeding.

In the event that a Product or parts thereof becomes subject to a recall decided by Cellink, the Buyer shall participate and assist in such a process in accordance with Cellink’s instructions. The Buyer is entitled to compensation for its reasonable direct and documented costs occurred in relation to the provision of such assistance.

The limitation of Cellink’s liability set forth in this section shall not apply where Cellink has been guilty of negligence.

Both Parties shall keep and maintain product liability insurance in accordance with customary conditions.

10. Limitation of Liability

Save for what follows from section 9, Cellink’s aggregate liability in relation to any claim of any kind for any loss or damage arising out of, connected with, or resulting from the Agreement or from the design, manufacture, sale, delivery, resale or use of the Products or any part thereof, as the case may be, shall be limited to the refund of the purchase price of the Products with respect to which the loss, damage or breach occurred.

In no event shall Cellink be liable towards the Buyer for any loss of production or profit, loss of use, loss of data, loss of contracts or for any other consequential, economic or indirect loss whatsoever in respect of the sale, purchase, use or disposition of the Product. 

The limitation of Cellink’s liability in this section shall not apply where Cellink has been guilty of negligence.

11. Force Majeure

The Parties shall be relieved from liability for a failure to perform any obligation under the Agreement during such period, and to the extent that the due performance thereof by either of the Parties is prevented by reason of any circumstance beyond the control of the Parties (“Discharging Circumstance”). If not otherwise shown, war, warlike hostilities, mobilization, or general military call-up, civil war, fire, flood, or other circumstances of similar importance, shall be considered as Discharging Circumstances.

If a Party wishes to invoke a Discharging Circumstance, it shall give immediate notice to the other Party of the commencement and the cessation of such Discharging Circumstance, failing which, the Party shall not be discharged from liability for any non-performance caused by such Discharging Circumstance.

The time for performance of the relevant obligations of a Party shall be appropriately extended by the period during which a Discharging Circumstance continues, provided, however, that if performance of a contractual obligation is prevented by a Discharging Circumstance for a period of six (6) months or more, each Party shall be entitled to terminate the Agreement.

12. Confidentiality

The Parties hereby undertake, during the term of this Agreement and thereafter, to hold in confidence and absolute secrecy any and all Confidential Information (as defined below), disclosed by the other Party pursuant to this Agreement and not to disclose to third parties any Confidential Information received. Furthermore, the Parties shall take reasonable steps to prevent an unauthorized disclosure or use of such Confidential Information by employees, subagents or other intermediaries.

For the purpose of this Agreement, “Confidential Information” means any and all information (whether in written or oral form), including but not limited to technical, practical, commercial information and the contents of this Agreement, save as provided under (1) – (4) below:

  1. information which is known or which becomes known in full detail to the public otherwise than by breach of the obligations herein contained;
  2. information which the disclosing Party can show was in its possession before receiving it from the other Party;
  3. information which a Party has received or receives from a third party without restraints as to the disclosure thereof;
  4. information which a Party is legally obliged to disclose by compulsory law, court order or by order of another authority of competent jurisdiction.

13. Miscellaneous

The Agreement, including all appendices hereto including the General Terms, contains the final, complete and exclusive agreement of the Parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter.

These General Terms shall be interpreted and construed in accordance with the laws of Sweden. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The place of arbitration shall be Gothenburg, Sweden. The language to be used in the arbitral proceedings shall be English.

The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.